IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MCKINLEY CLARK,

Plaintiff,

vs. Civil Action 2:11-CV-470

Judge Watson 

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

This is an action instituted under the provisions of 42

U.S.C. §§405(g) and 1383(c) for review of a final decision of the

Commissioner of Social Security denying plaintiff’s application for

supplemental security income. This matter is now before the Court

on plaintiff’s Statement of Specific Errors, Doc. No. 14, and the

Commissioner’s Memorandum in Opposition, Doc. No. 19.

Plaintiff McKinley Clark protectively filed his

application for benefits in February 2007, alleging that he has

been disabled since June 3, 1992, due to diabetes, high blood

pressure, poor vision, and chronic back pain.1 PageID 186. The

application was denied initially and upon reconsideration, and

plaintiff requested a de novo hearing before an administrative law

judge.

On November 24, 2009, plaintiff, represented by counsel,

appeared and testified at a hearing, as did Michael A. Klein,

Ph.D., who testified as a vocational expert. In a decision dated

February 24, 2010, the administrative law judge concluded that

1

At the administrative hearing, plaintiff amended his alleged onset

date to February 19, 2007, i.e., the day that he protectively filed his

application. See PageID 62, 114.

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plaintiff was not disabled within the meaning of the Social

Security Act. That

decision became the final decision of the Commissioner of Social

Security when the Appeals Council denied review on April 1, 2011.

Plaintiff was 56 years old on the amended alleged onset

date. PageID 72, 169. He has a high school education. PageID 190.

He has no prior relevant work experience, although plaintiff

reported prior work as a lubrication servicer. PageID 72, 209.

Plaintiff testified at the administrative hearing that he 

experiences low back pain every day. PageID 131. The pain began in

1999 and has worsened since that time. PageID 130-31. At the time

of the administrative hearing, his daily pain was a 10 on the

analog pain scale. PageID 132. The pain is aggravated by standing 

too long. He also has difficulty bending. Id.

Plaintiff treats his back pain with a TENS unit,

medication and back rubs. PageID 132. His medications make him

drowsy. PageID 124. He has also participated in physical therapy.

PageID 133-34. A uses a cane, which was prescribed for him. PageID

136-37.

Plaintiff climbs the stairs in his home “maybe once a

day.” PageID 117. He no longer drives. Page ID 119. On a typical

day, plaintiff tests his blood sugar, eats, watches the news or

reads the Bible. PageID 128. He uses the telephone or plays chess

with a friend. He also naps. He attends church. PageID 129. He

performs no household chores. Id. 

Plaintiff estimates that he can stand and/or walk about

15 to 20 minutes before having to sit down, for a total of three

hours in an eight-hour workday. PageID 125. He estimates that he

can sit for 35 to 40 minutes before having to stand for 10 minutes

before sitting back down. PageID 126. His therapist advised that he

should not lift more than five pounds. Id. He can lift a gallon of

milk, but cannot do so repetitively. PageID 127, 133. 

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Plaintiff underwent a compensation and pension evaluation

in November 2006 at the Veteran’s Affairs Medical Center (“VA”).

Records reflect diagnoses of diabetes since 1999, for which

plaintiff is prescribed NovoLog. Plaintiff complained of

intermittent numbness and tingling in his feet and intermittent low

back pain for the two years prior to this examination. On physical

examination, plaintiff’s gait was normal. He could toe and heel

raise. Forward flexion was possible to 80 degree and extension was

possible to 30 degrees. There were no paraspinal musculature

spasms. Peripheral nerve studies were 5/5 and deep tendon reflexes

were symmetrical and 2+ bilaterally. There was no asymmetrical

muscle atrophy. X-rays of the lumbar spine revealed evidence of

degenerative disc disease with some mild facet joint arthropathy in

the lower lumbar region. Plaintiff was diagnosed with mild

arthritis of the lumbar spine and very mild bilateral diabetic

peripheral neuropathy in the lower extremities. The VA examiner

concluded that, although plaintiff suffered from mechanical low

back pain, this condition “is [not] a reason for unemployability.” 

PageID 255.

Edward Stone, M.D., has treated plaintiff’s low back pain

at the VA. In February 2007, Dr. Stone advised plaintiff to

refrain from heavy lifting. PageID 247.

On July 5, 2007, Norma Villanueva, M.D., performed a

consultative examination of plaintiff at the request of the state

agency. PageID 317-21. Plaintiff reported throbbing back pain for

3 years, which prevented him from walking more than 2 blocks

without pain. PageID 317. He cannot climb stairs and could stand

for only 30 minutes without pain. Id. Dr. Villanueva noted that

plaintiff could get on/off the examination table and dress and

undress without difficulty. Plaintiff’s gait was slow. PageID 320.

Dr. Villanueva also noted tenderness in the lower back. On

clinical examination, Dr. Villanueva reported, flexion was limited

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to 50 degrees and extension was limited to 15 degrees with pain;

there was decreased sensation in the lateral aspect of the feet.

PageID 318. Dr. Villanueva’s clinical impression was diabetes

mellitus with neuropathy and chronic low back pain, possibly the

result of arthritis. PageID 319. 

A state agency physician, Virgilio Pilapil, M.D.,

reviewed the file on July 26, 2007, PageID 594-601, and opined that

plaintiff could lift and/or carry 50 pounds occasionally and 25

pounds frequently, could stand and/or walk for about 6 hours and

sit for about 6 hours in an 8-hour workday. PageID 595. Plaintiff

could occasionally climb ramps, stairs, ladders, ropes or scaffolds

and could frequently balance, stoop, kneel, crouch and crawl. 

PageID 596. Plaintiff would be limited to far visual acuity. PageID

597. That assessment was affirmed in October 2007 by another state

agency physician, Nick Albert, M.D. PageID 384.

On August 16, 2007, plaintiff was seen at the primary

care clinic at the VA for diabetes mellitus II, obesity, mild renal

insufficiency and low back pain. PageID 338-40. Kun B. Lim, M.D.,

reported that plaintiff suffered from daily low back pain due to

degenerative disease of the lumbar spine and had been advised to

refrain from heavy lifting. PageID 340, 341. The doctor also noted

that plaintiff had been unable to work for the past several years

due to back pain. Id. An x-ray of the lumbar spine was normal.

PageID 377.

In September 2007, Dr. Lim prescribed a straight cane.

PageID 350-51. 

On January 18, 2008, plaintiff underwent a functional

capacity evaluation upon referral by the VA. PageID 402-11. The

occupational therapist reported that, because of plaintiff’s

elevated blood pressure, a physical demand level could not be

assessed. However, the therapist observed positional tolerances

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within the occasional level when it came to sitting and hand

manipulative skills. Id.

Plaintiff was seen by Andrew Su, M.D., at the primary

care clinic at the VA on February 13, 2008. PageID 525-28.

Plaintiff reported chronic low back pain, occasional mild fatigue,

variable blood sugars of between 130-250 and overeating. PageID

525. Dr. Su referred plaintiff to the diabetic clinic and for

nutrition services. PageID 527. Dr. Su noted that plaintiff was

compliant with his pain management plan of care. Id.

Plaintiff underwent a second functional capacity

evaluation on May 1, 2008. PageID 413-22. The occupational

therapist concluded that plaintiff fell within the sedentary

physical demand level and could not tolerate more than a 2 hour

workday. PageID 413. Plaintiff could only occasionally sit, stand

and walk. PageID 414.

Plaintiff was initially seen at the Diabetic Control

Clinic at the VA on May 30, 2008. PageID 549-52. Plaintiff reported

that he was walking 3 times a week, for 15 minutes at a time, to

help with diabetic control. PageID 551-52. 

On December 9, 2008, Dr. Su reported that plaintiff

suffered chronic severe low back pain due to degenerative disc

disease which precluded all lifting. As a result, Dr. Su

concluded, plaintiff was unable to work. PageID 424.

Plaintiff’s diabetes was reported as uncontrolled at his

next appointment in the Diabetes Control Clinic at the VA on

December 31, 2008. It was determined that plaintiff had not been

taking the correct dosage of medication at the correct time.

Plaintiff also failed to bring his blood sugar log to the

appointment. PageID 437-41. On January 15, 2009, plaintiff

reported that his morning sugars remained elevated. His insulin was

increased. PageID 435. On March 3, 2009, plaintiff reported that he

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could not walk much because of his lower back pain. PageID 485.

PageID 487.

On June 17, 2009, plaintiff was seen in the podiatry

clinic at the VA for complaints of right heel pain. He was

diagnosed with right plantar fasciitis and right Achilles

tendonitis. PageID 469-72.

On August 13, 2009, Dr. Su saw plaintiff for complaints

of worsening chronic low back pain. PageID 505-07. An x-ray of the

lumbar spine showed partial sacralization of the left L5 transverse

process with pseudoarticulation, a condition that could be

“symptomatic.” PageID 491. Dr. Su prescribed physical therapy.

PageID 507. 

Plaintiff attended physical therapy sessions from

September through November 2009. PageID 493-96, 571-72, 577-81. On

clinical examination, plaintiff demonstrated limited range of

motion; straight leg raising was limited to 40 degrees on the left

by pain. PageID 494. He exhibited poor control of the left leg and

had difficulty maintaining a stable trunk. Id. Plaintiff reported

that a TENS unit helped his pain. PageID 572.

On November 18, 2009, Dr. Su opined that plaintiff is

unable to do more than sedentary work due to chronic lumbar pain.

This limitation was expected to be lifelong. PageID 593.2

At the administrative hearing, the vocational expert was

asked to assume a claimant with plaintiff’s vocational profile who

can life 50 pounds occasionally. In response, the vocational expert

testified that such a claimant could perform plaintiff’s past work

as a lubrication servicer and approximately 40,000 medium, and

60,000 light, jobs in the regional economy. The vocational expert

also testified that, assuming the credibility of plaintiff’s

2

The record also includes treatment for mental impairments. Because the

issues presented in plaintiff’s Statement of Errors do not turn on the

Commissioner’s assessment of plaintiff’s claimed mental impairments, the Court

will not recount that evidence.

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testimony regarding pain, such a claimant could not perform any

work because such a claimant would be unable to sit, stand or walk

for an eight hour day. PageID 140-43.

In her decision, the administrative law judge found that

plaintiff suffers the severe impairments of diabetes mellitus type

II, hypertension with mild angiopathy, degenerative disc disease of

the lumbar spine, hepatitis C, tendonitis of the right Achilles

tendon and right plantar fasciitis. Finding that plaintiff’s

conditions neither meet nor equal a listed impairment, the

administrative law judge went on to find that plaintiff has the

residual functional capacity to perform a full range of medium

exertion. Using Rule 203.14 of the Medical-Vocational Guidelines 3

as a framework, and relying on the testimony of the vocational

expert, the administrative law judge concluded that plaintiff is

not disabled within the meaning of the Social Security Act. PageID

62-73.

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the

findings of the administrative law judge are supported by

substantial evidence and employed the proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971). Longworth v. Comm’r of

Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence

is more than a scintilla of evidence but less than a preponderance;

it is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. Jones v. Comm’r of Soc. Sec., 336

F.3d 469, 475 (6th Cir. 2003); Kirk v. Secretary of Health & Human

Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try

the case de novo, nor does it resolve conflicts in the evidence or

questions of credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th

Cir. 2007).

3

See Medical-Vocational Guidelines, 20 C.F.R. Subpart P, Appendix 2,

Rule 203.14.

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In determining the existence of substantial evidence,

this Court must examine the administrative record as a whole. Kirk,

667 F.2d at 536. If the Commissioner’s decision is supported by

substantial evidence, it must be affirmed even if this Court would

decide the matter differently, Tyra v. Sec’y of Health & Human

Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)(citing Kinsella v.

Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983)), and even if

substantial evidence also supports the opposite conclusion.

Longworth, 402 F.3d at 595.

In his Statement of Errors, plaintiff contends that the

administrative law judge erred by failing to give controlling

weight to the opinions articulated by his treating physician, Dr.

Su. Plaintiff also contends that, had the administrative law judge

properly considered Dr. Su’s opinion that plaintiff is capable of

no more than sedentary exertion, the Medical-Vocational Guidelines

would direct a finding of disability.4

The opinion of a treating physician is entitled to controlling

weight if it is consistent with the evidence and supported by sufficient

clinical findings. Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th

Cir. 2007). However, an ALJ is not bound by such an opinion if there is

substantial medical evidence to the contrary. Id. In addition, the ALJ

is not bound by a physician’s conclusory opinion that a claimant is

unable to work. See Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).

If an administrative law judge rejects the opinion of a

treating physician, she must give “good reasons” for the weight

given to the opinion of that treating source. See Blakley v.

Commissioner of Social Security, 581 F.3d 399, 406 (6th Cir. 2009);

Wilson v. Commissioner of Social Security, 378 F.3d 541, 545 (6th

Cir. 2004). See also 20 C.F.R. § 416.927(d)(2). In meeting this

standard, the administrative law judge must consider certain

4

A claimant of plaintiff’s age who is limited to even light exertion

would be disabled under Rule 202.04 of the Medical-Vocational Guidelines.

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factors, specifically “the length of the treatment relationship and

the frequency of the examination, and the nature and extent of the

treatment relationship, the supportability of the opinion, the

consistency of the opinion with the record as a whole, and the

specialization of the treating source.” Id. The administrative law

judge’s reasons must also be based on evidence in the record and be

“sufficiently specific to make clear to any subsequent reviewers

the weight the adjudicator gave to the treating sources medical

opinion and the reasons for that weight.” Id.

In finding that plaintiff has the residual functional

capacity for medium work, the administrative law judge relied on

the opinions of the state agency physicians and the comments of

Drs. Stone and Lim that plaintiff should avoid “heavy lifting.” 

The administrative law judge specifically rejected Dr. Su’s

December 2008 and November 2009 assessments, in which Dr. Su stated

that plaintiff could perform no lifting, was limited to sedentary

exertion, and was disabled. PageID 424, 593. The administrative

law judge characterized Dr. Su’s opinions as inconsistent with the

medical evidence, including Dr. Su’s own treatment notes, and as

conclusory with “very little explanation of the evidence relied on

in forming the opinions.” PageID 68.5

This Court concludes that the administrative law judge

failed to properly evaluate Dr. Su’s opinions. Although those

opinions were, as noted by the administrative law judge, somewhat

conclusory, they were no less so than were the opinions of Drs.

Stone and Lim, upon which the administrative law judge relied. 

5

In addition, the administrative law judge rejected Dr. Su’s opinion

that plaintiff is disabled because it intruded into an area reserved to 

Commissioner. See 20 CFR §416.927(e). Whether a person is disabled within the

meaning of the Social Security Act is an issue reserved to the Commissioner,

and a treating physician’s opinion that his patient is disabled is not

“giv[en] any special significance.” Id. See Warner v. Comm’r of Soc. Sec.,

375 F.3d 387, 390 (6th Cir. 2004) (“The determination of disability is

ultimately the prerogative of the Commissioner, not the treating physician.”) 

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Moreover, the objective medical evidence, which includes x-ray

evidence of a condition that could be “symptomatic,” limited range

of motion and positive straight leg raising, provides greater

support for the opinions of Dr. Su than for the opinions of Drs.

Stone and Lim. In any event, even Dr. Lim prescribed a cane and

commented that plaintiff “has not been able to work for past

several years due to back pain.” PageID 341.

Dr. Su’s opinions are also supported by the findings and

conclusions of the occupational therapist, who concluded that

plaintiff was limited to sedentary exertion. The administrative

law judge gave “little consideration” to the occupational

therapist’s conclusion, characterizing it as “not consistent with

the totality of medical evidence.” PageID 68. 

It is not apparent to this Court in what respect the

opinions of Dr. Su and the conclusion of the occupational therapist

were inconsistent with the medical evidence which, as noted supra,

includes objective evidence of a severe back impairment. It

therefore cannot be said that the administrative law judge gave

good reasons for her assessment of the opinions of Dr. Su.

In short, this Court concludes that the matter must be

remanded to the Commissioner for further consideration of the

opinions of plaintiff’s treating physician, Dr. Su.

It is therefore RECOMMENDED that the decision of the

Commissioner be REVERSED and that the matter be REMANDED to the

Commissioner of Social Security for further consideration of the

opinions of plaintiff’s treating physician, Dr. Su.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14)

days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and

Recommendation, and the part thereof in question, as well as the

basis for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P.

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72(b). Response to objections must be filed within fourteen(14)

days after being served with a copy thereof. F.R. Civ. P. 72(b).

The parties are specifically advised that failure to

object to the Report and Recommendation will result in a waiver of

the right to de novo review by the District Judge and of the right

to appeal the decision of the District Court adopting the Report

and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith

v. Detroit Federation of Teachers, 18 Local 231 etc., 829 F.2d 1370

(6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir.

1981).

Date: July 6, 2012 s/Norah McCann King 

Norah McCann King

United States Magistrate Judge

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